State v. Heitman, 60872

• Decision Date: 14 November 1979
• Docket Number: No. 60872,60872
• Citation: 589 S.W.2d 249
• Parties: STATE of Missouri, Respondent, v. Michael G. HEITMAN, Appellant.
• Court: Missouri Supreme Court

Page 249

589 S.W.2d 249

STATE of Missouri, Respondent, v. Michael G. HEITMAN, Appellant.

No. 60872.

Supreme Court of Missouri, En Banc.

Nov. 14, 1979.

Rehearing Denied Dec. 6, 1979.

Thomas J. Cox, Jr., Charles C. Curry, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Michael Heitman, appealing his convictions of burglary second degree, § 560.045, and stealing, § 560.156, RSMo 1969, contends as error: (1) insufficiency of the proof; (2) improper admission of illegally seized evidence; (3) failure of the trial judge to disqualify on defendant's oral motion made at the opening of trial, and (4) refusal of the trial court to submit an "accomplice" instruction. The Court of Appeals, Western District, ruling only on defendant's second contention, determined that without certain challenged exhibits the evidence was insufficient to convict and ordered defendant discharged. ¹ The cause was transferred here and considering the issues as though on original appeal, we affirm.

The facts and inferences supportive of the verdict are these: Following a tip from an anonymous informant, who on more than five occasions had been shown to be reliable and precise, Officers Jackson and Grove of the St. Joseph Police Department commenced a continuing surveillance of the Ronald Oliphant home in that city on July 5, 1976. They had learned from the informant that "Ronnie Oliphant was going to participate in the breakin of some type of pharmaceutical business," and though the time and place were not specified, it was to occur within the week. Acting on that information plus Jackson's personal knowledge that Oliphant, Wolfe, and defendant had been convicted of prior burglaries, the officers went to a place near the Oliphant home about 8:00 p. m. that evening. Driving past the residence in an unmarked vehicle, they observed Danny Wolfe installing in his auto a small square box with lights on the front which the officers recognized as a "police scanner." From a vantage point about one-half block away they saw Wolfe go into the Oliphant house and a few moments later Wolfe, with a woman and a child emerged from the house, entered Wolfe's auto and drove away. The officers followed the auto to a house which they believed was Wolfe's parents, where the woman, (apparently Mrs. Wolfe) took the child inside and came out alone. The Wolfes returned to the Oliphant residence and went inside. Continuing their surveillance, the officers saw Danny Wolfe come out, remove the small box from his vehicle and install it in a vehicle owned by Oliphant. He also placed a black object, described as long, narrow, and about 1/2 inch in diameter in the passenger side of the car. Meanwhile Ronald Oliphant came to the car and put some brown material on the floorboards. Both men returned to the house for ten minutes, then came to the Oliphant car and at about 9:00 p. m. drove away.

The officers followed but soon lost the Oliphant vehicle, and after advising the desk commander, resumed their surveillance of the Oliphant residence. At about 11:15 the Oliphant car returned, pulling into an alley at the rear of the premises. Because the officers could not see it from their vehicle they moved on foot to a yard on the east side of the Oliphant residence, from which they observed Danny Wolfe go into the house. From that position the officers could not see the car so they moved beyond the garage and went into the alley directly behind the Oliphant residence.

From there they could see the car which was about 15 feet away parked athwart the alley with its back toward the house. The trunk was open and the trunk light burning. Inside they could see two broken cardboard boxes containing what appeared to be pill bottles. Oliphant and defendant, who were standing near the trunk wearing brown cloth work gloves (it was warm 75o ) reached into the trunk and each picked up one of the boxes. Both boxes had a screwdriver protruding from them and each contained plastic bottles extending above the top with plastic seals around the lids. Although there is some inconsistent testimony, Officer Jackson repeatedly testified to the similarity of the plastic bottles he viewed and those used in the pharmaceutical trade. When the two men closed the trunk and started toward the house, the officers noticed that each had a flashlight in his pocket. ²

It was then the officers stepped forth and arrested Oliphant and defendant for "investigation of burglary." Though the officers had no information that a burglary of Dr. Titcomb's office had occurred, they noted a label on one of the cardboard boxes bearing the name and address of a Dr. Titcomb, North Belt Highway in St. Joseph. They also seized the gloves, flashlights and the boxes with their contents which were found to contain capsules of phendimetrazine tartrate.

At 11:50 p. m., a crime scene search was conducted at the offices of Dr. Titcomb where four separate doors were found to have been forced open. Near the door to the medicine room in the doctor's private office, small wood chips and boxes were strewn on the floor. In a storeroom at the "back auxiliary doctor's office," were large amounts of broken plaster, and an accumulation of dust under a hole in the wall. In that dust the officers discovered a partial shoe print. About that time a fifth door to a separate storeroom was found to have been forced. Laboratory analysis showed the plaster samples gathered from the scene compared directly with the gypsum material found on the soles of defendant's shoes and gloves. Further it was determined that the screwdriver taken from the box he was carrying when arrested was the one that made the marks on a striker plate at the burglarized premises. No question is raised in defendant's brief and the evidence is clear that a burglary and a theft of a quantity of the drug phendimetrazine tartrate occurred. Matching invoices from the doctor's records with labels on the boxes provides a clear connection with defendant and his assertion that there is nothing linking him with the burglary of Dr. Titcomb's office is belied by the record. Defendant's claim of insufficiency of the proof is without merit for indeed a strong case was made.

Defendant next contends the officers had no probable cause for arrest and the evidence then seized was inadmissible. A warrantless search and seizure may be justified on one of the established exceptions to the warrant requirement of the fourth amendment to the United States Constitution, and a search conducted incident to a lawful arrest represents one such exception. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925); James v. Louisiana, 382 U.S. 36, 37, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965). An arrest with or without a warrant requires probable cause, which simply means a knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed An offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Robinson, 484 S.W.2d 186, 189 (Mo.1972). It was not necessary that the officers then knew of The particular offenses of burglary and stealing at Dr. Titcomb's office. While the quantum of information necessary to fashion probable cause means more than mere suspicion, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); State v. Hicks, 515 S.W.2d 518, 521 (Mo.1974), its existence must be determined by practical considerations of everyday life on which reasonable persons act and not the hindsight of legal technicians. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975). All information known to the officers and the reasonable inferences therefrom bear on the determination of that issue.

It first should be noted that the officers knew defendant as a convicted burglar, more particularly they knew him as a participant with Oliphant and Wolfe in such crimes. It is most significant that the officers received information from a reliable tipster that Oliphant soon would attempt to burglarize a pharmacy. Again it may be said such information standing alone would not provide probable cause, compare Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); however it singled out a specific individual (Oliphant) and a specific type of crime (burglary of a pharmacy), as vital concerns for the officers observing the activities at Oliphant's residence on that eventful July 5th evening.

Armed with this information the officers observed Wolfe and Oliphant twice carefully install what the officers believed was a "police scanner" in an auto just before driving away. It may not be seriously argued that the use of a police-radio monitoring device by convicted burglars who have been reported planning a burglary may not have been considered by officers as a fact pertinent to the question of probable cause. At 11:15 p. m. and late hour is important the officers observed defendant and Oliphant wearing gloves in warm weather carrying cardboard boxes. The boxes, which have been sent to this Court as part of the record, do not have the sharp edges or sheer mass which in everyday life would impel the use of gloves for carrying. The officers observed that the boxes contained plastic bottles with seals "like a bottle of liquor might have," and those two cartons of bottles did not appear to be over-the-counter drug store items. Also, the presence of screwdrivers and flashlights, ordinary items when considered in isolation but useful in the commission of a burglary after dark, triggered a reasonable response, resulting in the arrest. On this issue the Supreme Court in Draper v. United...